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Labor Relations Update

NNU Ebola “Day of Action” Slated for November 12, 2014

Posted in Ebola, Healthcare Employers, Strikes

Registered nurses in 16 states and the District of Columbia are planning a national “Day of Action” by engaging in strikes, picketing, leafleting, rallies, and candlelight vigils on Wednesday, November 12, in support of demands by National Nurses United (“NNU”) for tougher Ebola safety precautions in the nation’s hospitals.  As we reported previously, NNU has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  Wednesday’s Day of Action is the latest development in that campaign.

The NNU is demanding optimal personal protective equipment for nurses and other caregivers who interact with Ebola patients. Specifically, full-body hazmat suits that meet the American Society for Testing and Materials F1670 standard for blood penetration, F1671 standard for viral penetration, and that leave no skin exposed or unprotected, and National Institute for Occupational Safety and Health-approved powered air purifying respirators with an assigned protection factor of at least 50.  The union is also demanding that hospitals provide extensive hands-on training for RNs and other health workers who might encounter an Ebola patient, including ongoing education and review of the use of personal protective equipment and infection control protocols.

Actions in support of these measures include a two-day strike at 86 Kaiser Permanente hospitals and clinics in California, starting on November 11, by 18,000 RNs and nurse practitioners who have been engaged in negotiations with Kaiser for several months.  The planned strike cites Ebola preparedness as part of a broader protest alleging the erosion of patient care standards.  In a November 10 statement, Kaiser vigorously disputed the NNU’s claims and expressed disappointment at the planned job action.

Additional strikes will involve roughly 600 RNs at two other California hospitals – Sutter Tracy and Watsonville General Hospital – and 400 RNs at Providence Hospital in Washington D.C., where nurses voted to unionize last December.  Additional events include picketing, rallies, and vigils at hospitals and government buildings (including the White House) in Washington, D.C.; New York; Chicago; Houston; St. Louis; Kansas City; Las Vegas; Lansing, Michigan; Massillon, Ohio; Augusta, Georgia; Bar Harbor, Maine; Durham, North Carolina; St. Paul, Minnesota; Memphis, Tennessee; and Ft. Lauderdale, Florida, while nurses in Massachusetts are planning to distribute leaflets at commuter stations.

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

Posted in Employer policies, Facebook, NLRA, NLRB, Protected activity, Social Media, Social Media Policies

 In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the neighborhood center, was not protected under the NLRA.  During the course of their Facebook exchange, which included obscenity-laced statements regarding how they would “raise hell” at the center, the employees lost protection under the NLRA because of their threats of insubordination.

The employees discussed at length how they would supplant the “happy-friendly-middle school campy” atmosphere at the center with a reckless regime of “field trips all the time to wherever [ ] we want” and other activities at variance with the center’s management. After management received screenshots of this prolonged exchange, they rescinded the re-hire offers for these two former employees for the following year.

The Board adopted the ALJ’s finding that the “Facebook exchange contains numerous statements advocating insubordination.”  In particular, the employees:

  • Refused to obtain      permission as required by the Employer’s policies (“ordering [ ], having      crazy events at the Beacon all the time. I don’t want to ask permission.”)
  • Disregarded specific      school-district rules (“teach the kids how to graffiti up the walls…”)
  • Undermined leadership (“I      would hate to be the person takin your old job”)
  • Neglected their duties (“I      AINT GOBE NEVER BE THERE”)
  • Jeopardized the future of      the institution (“they start loosn kids I aint helpn”)

Despite the General Counsel’s argument that the ALJ incorrectly applied a subjective standard of what the employer “could” conclude, the Board found that the employees’ “pervasive advocacy of insubordination in the Facebook posts, compromised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection.”  In adopting an objective standard, the Board noted here that the actions were described in such detail that a reasonable employer would reasonably refuse to take the risk of waiting to see whether the employees would act on the conduct they so artfully advocated.

This decision places reasonable limits on what the Act protects when employees, even when acting concertedly, plot to undermine the employer’s legitimate business expectations through insubordination.  It is not a guarantee, however, that similar conduct will always be found to have lost the Act’s protection.  There is ample evidence in other work rules and social media cases that neither the Board nor the General Counsel will hesitate to second-guess what appear to be common sense, reasonable employer rules and how an “objective” employee will read them.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.

NLRB Imposes Extraordinary, Tough Remedies for Egregious and Pervasive Violations

Posted in NLRA, NLRB, Rights Poster

In a landmark decision, the National Labor Relation Board has imposed an array of extraordinary remedies against an employer for what the NLRB described as “egregious and pervasive violations” of the National Labor Relations Act.  Pacific Beach Hotel, 361 NLRB No. 65 (2014).

As the basis for its imposition of the remedies, the NLRB stated:

Despite having been found in violation of multiple provisions of the Act, having been found to have engaged in objectionable conduct that interfered with elections on two occasions, having been subject to two Section 10(j) injunctions, and having been found in contempt of court for violating a Federal district court’s injunction, the case before us demonstrates that the Respondents still have not complied with the remedial obligations imposed on them during our earlier encounters. Rather, they have continued to engage in unlawful activity, some of which repeatedly targeted the same employees for their protected activity and detrimentally affected collective bargaining.

Slip op. at 2 (emphasis in original).

While the remedies in question were based on those imposed in previous NLRB and judicial proceedings, the decision marks the first time that so many of the remedies have been imposed against one party in a single order.  The enhanced remedies imposed by the NLRB in its decision include:

  • Payment of the NLRB General Counsel’s and the Union’s attorneys’ fees and costs.  This raises the issue of the Board’s authority to  require this either under its its claimed inherent power to “control and maintain the integrity of its own proceedings,” and perhaps sets up a test in the federal courts.
  • Payment of the Union’s bargaining expenses (and other related expenses) to the extent they exceed “normal expenses” as a result of the Employer’s violations. 
  • Posting and mailing of the traditional Board notice, the NLRB decision and an Explanation of Rights of employees under the NLRA. The Explanation of Rights is a unique remedy devised for the first time in this case.  Its stated purpose is to set out “the Employees core rights under the Act, coupled with clear general examples that are specifically relevant to the unfair labor practices found in this case.”  While the federal courts have found that the Board did not have the power to require the posting of similar notices under its rulemaking authority, the Board claims the power to require Explanation of Rights in this case under its remedial authority, tailored to the specific violations in this case.
  • Requiring the posting period to be three years. The normal posting period is sixty days, but the Board felt the three year period was necessary to overcome the “legacy of coercion” and to “change . . . the workplace culture.” 
  • Requiring mailing to all employees, including supervisors and managers. One of the points of dissent was the authority of the Board to require notices to be mailed or distributed to supervisors and managers, who are not statutory “employees” under the NLRA. 
  • Requiring the notice and the Explanation of Rights to be given to all newly hired employees, and supervisors and managers, for a period of three years. 
  • Requiring the notice and Explanation of Rights to be published in two publications of” broad circulation and local appeal” twice a week for a period of eight weeks. 
  • Requiring the reading of the notice and Explanation of Rights to all of the employees, and requiring the attendance of managers and supervisors, including senior executives, at each of the three meetings where the reading takes place. 
  • Rescission of unlawful unilateral changes made by the Employer to the terms and conditions of employment, including any rule at variance with any contractual provision or past practice of allowing Union representatives access to the Employer’s property. 
  • Inclusion of a “visitation clause” in the notice, allowing a “duly appointed Board agent” to enter the Employer’s facility for a period of three years for the purpose monitoring whether the Employer is in compliance with the “posting, distribution mailing requirements.” 

The NLRB considered and endorsed, but did not award, front pay for a specific individual who it found had been the focus of discrimination and discharge by the EmployerSuch an award would have been a first for the Board, which heretofore has only awarded make whole remedies such as back pay and reinstatement.

The two separate dissents took issue with some portions of the above remedies, but in general agreed that this was a case in which at least some of the remedies were appropriate.

The remedies in this case are undoubtedly strong.  It remains to be seen whether, if challenged, they will survive in this form.  But for now, this decision marks a dramatic but not completely surprising effort from the Board to put more “teeth” in its remedies, particularly where dealing with what it considers a recidivist employer.  Query whether these remedies, or versions of them, will be extended to cover other, less egregious cases.








Ebola and Potential Labor Relations Issues

Posted in Collective Bargaining, Healthcare Employers, Non-Union employers, Protected activity, Strikes

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers.  The escalating concern over Ebola also raises potential labor relations issues.  Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members.  Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.

An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees.  Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears.  Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.

Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training.  Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.

National Nurses United (NNU) has been especially outspoken.  In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands.  Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease.  Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.

Other unions are engaging in similar activities.  As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active.  Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.

In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns.  At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola.  In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.

Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears.  In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations.  Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns.  They may also be faced with bargaining demands by employees seeking greater protection.  Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.

NLRB Refines Its Test for Independent Contractor Status

Posted in Bargaining units, Collective Bargaining, Representation Elections

The National Labor Relations Board, with one member dissenting, has issued a decision in which it “refines” the test it uses for determining whether it will find individuals performing services for an employer to be employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx Home Delivery, 361 NLRB No. 55 (2014). This is an important decision because of its broad application in determining the status of workers in both representation cases and in unfair labor practice cases as well.

In the decision, the NLRB found drivers for the company to be employees, not independent contractors.  The overriding issue in the case involved the proper role of evidence on the issue of whether the drivers possessed the “entrepreneurial opportunity for gain or loss” that would be the hallmark of an independent business, and how that factor should be evaluated in light of the other traditional factors considered by the NLRB and the courts in such cases.

Although these types of cases are virtually always heavily fact dependent, the Board took the opportunity in this case to make some key legal points about the evidence of economic opportunity for gain or loss:

(1)  The multifactor test articulated in the Restatement (Second) of Agency § 220 (1958) has traditionally been employed by the NLRB and the courts in making and reviewing employee/independent contractor determinations under the NLRA. The Board stated that it would simply consider entrepreneurial opportunity along with the Restatement factors, but would not grant it overriding “animating” importance, as it accused the DC Circuit of doing.

(2)  The Board further held that any claimed entrepreneurial opportunity of the individuals in question must be real, not merely theoretical.  The Board will look at employer imposed and other structural factors which act as an impediment to the genuine existence of entrepreneurial opportunity.  Further, in representation cases, the Board will consider evidence regarding only the individuals in question (here, those in a requested bargaining unit), and not system wide or extra-unit evidence.  (It is to be expected that a similar limitation will be imposed in unfair labor practice proceedings where no bargaining unit issue is in play.)

(3)  Finally, Board said that it will look at the work being done by the individuals in question and ask whether they are truly performing it in the same way as a bona fide independent business would.

In a lengthy, detailed dissent, Member Johnson took issue with the majority on a number of legal and policy issues, perhaps best summarized by his statement that the majority decision constitutes “a sharp departure from precedent by diminishing the significance of the entrepreneurial opportunity factor to the point where it will rarely be considered as among the decisive factors in determining independent-contractor status.”

As noted, this case, like all such cases, is heavily fact bound, but the refinements in the test articulated by the NLRB purport to draw clear line in the sand between it and the DC Circuit over the issue of the proper role of and weight to be given entrepreneurial opportunity for gain or loss.  The case could therefore precipitate yet another show-down between the NLRB and the one federal court of appeals with virtually nationwide jurisdiction to review NLRB decisions.


¿Cómo Se Dice: “Lost in Translation”?

Posted in Decertification elections, Objectionable Conduct, Representation Elections

Labor law is filled with many technical rules, the meaning of which can sometimes can be lost in translation.  The recent NLRB decision in Labriola Baking Co., 361 N.L.R.B. No. 41 (2014), is a case in point.

During a campaign before a decertification election, an employer’s representative stated in a speech to the employees:  “If you chose Union Representation, we believe the Union will push you toward a strike. Should this occurs [sic], we will exercise our legal right to hire replacement workers for the drivers who strike.”  This was not an unlawful statement.

However, a translator hired to translate the speech for the workers – 80% of whom were Spanish speaking – used the Spanish words for “legal workers” or “legal workforce” in place of the English phrase “replacement workers.”  This led to a claim by the union that the employer tainted the election because the Spanish speaking workers, hearing that the employer had the right to hire “legal workers” or a “legal workforce,” would perceive this as a threat that their immigration status would be subject to scrutiny.

The employer countered that the speech, as written and delivered in English, had nothing to do with the workers’ immigration status.  Rather, the speech did nothing more than truthfully state the employer’s legal right to hire replacement workers during a strike.  But the Board held that because the translator was the employer’s agent, his rendition of the key phrase was attributable to the employer.

The employer further argued that even the phrase as translated by the translator did not threaten the employees with investigations into their immigration status.  Nevertheless, the Board held that given the potential vulnerabilities of the Spanish speaking workers, as well as their friends and relatives, the reference to “legal workers” or  a “legal workforce” could be very threatening to them. The Board further stated that it “must continue to fine tune its institutional ‘ear’ in order to protect vulnerable workers from immigration related threats and manipulation that violate the Act.”

The dissent agreed that the translated phrase could be attributed to the employer, but disagreed that it was threatening.  The dissent reasoned that simply because the workforce was predominantly Spanish-speaking did not support the majority’s inference that they would hear the translated words as a threat regarding their immigration status.

The lesson here is clear.  The employer, having chosen a translator spokesperson, will be responsible for the translator’s rendition of otherwise lawful speech.  Further, the Board – which evaluates statements from the standpoint of those who hear them – will “fine tune its institutional ear” to take account of the perceived vulnerabilities of the audience.

Reading the NLRB Signs at the Triple Play Sports Bar

Posted in Employer policies, Facebook, Handbook, NLRA, Protected activity, Social Media, Social Media Policies, Uncategorized

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. (August 22, 2014), the National Labor Relations Board ruled that an employee “liking” a status on Facebook is engaging in protected concerted activities under the NLRA.   Employees were unlawfully terminated for ranting about the employer’s tax-withholding error, which resulted in the employees owing an unexpected sum of money to the state tax authorities.

Getting to First: Facebook “Like” as Protected Concerted Activity

In a heated discussion on Facebook, an employee “liked” another employee’s post, which included: “They [the employer] can’t even do the tax paperwork correctly!!!! Now I OWE money… Wtf!!!!”  While the NLRB determined that the “like” constituted concerted conduct with the original poster, the Board also held that the “like” expressed agreement only with that particular post.  If an employee agrees with the subsequent commentary, s/he would have to “like” them individually.  The practical implication of this appears to be that unless an employee “likes” a specific post that was work related, it could not in the ordinary case constitute evidence of concerted conduct for purposes of the NLRA.  Here, however, the post which was “liked” involved the employer’s purported handling of tax paperwork issues, and was thus a protected form of employee communication seeking mutual support to improve their terms and conditions of employment.

What’s on Second?  Atlantic Steel v. Jefferson Standard

The Board considered whether the employee’s speech lost protection either under Atlantic Steel Co., 245 NLRB 814 (1979), or under the standards established in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).  Declining to follow the ALJ’s approach of applying Atlantic Steel, the Board noted that where issues arise out of off-duty, off-site social media use to communicate with other employees or third parties, Atlantic Steel is inapplicable because the standard announced in that case is “tailored to workplace confrontations with the employer.”  Here, because the underlying communications were outside the workplace, and were not directly with the employer, the Board applied Jefferson Standard to determine whether the employees’ speech was so disloyal, reckless or maliciously untrue as to lose protection under the Act.  The Board distinguished the facts here from the disparaging facts in Jefferson Standard, finding that the Facebook discussion disclosed the existence of an ongoing employment related dispute; that the communications were not directed to the general public because they were posted on an individual’s personal page; and that the comments did not disparage the employer’s products or services.  For those reasons, the employees speech did not lose the protection of the Act.

A Knuckle Ball: The Vagueness of “Inappropriate”

The NLRB reversed the ALJ’s decision to dismiss an alleged violation for the employer’s maintenance of an Internet/Blogging Policy.  Instead, the Board found that the policy violated the law.

The policy stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company.

As the policy was lacking in illustrative examples, the majority found that the policy’s language forbidding “inappropriate” communications in the Internet/Blogging Policy was “sufficiently imprecise” as to be overly broad.

Member Miscimarra, dissenting in part, argued that the term “inappropriate,” albeit “susceptible to different meanings,” was in fact “using an understandable catchall phrase as a general statement of policy.” In the dissent’s view, the policy only deemed discussions “inappropriate” if they violate the law.

Three Up, Three Down! The Savings Clause that Couldn’t

In light of two discharges related to protected concerted activity, the NLRB found a savings clause in the Internet/Blogging policy was “ineffective.”  The savings clause stated that: “In the event state or federal law precludes this policy, then it is of no force or effect.”  Even though the policy was to have “no effect,” the NLRB still found that the Internet/Blogging Policy would be viewed by employees through the lens of the termination of two employees for engaging in protected concerted activity.

Switch Hitter: A Lone Dissent

The dissent criticized the majority’s decision as the sort of analysis which “contributes to the uncertainty employers confront in seeking to square their rules,” which now “consists of so many distinctions, qualifications, and factual variations as to preclude any reasonable ‘certainty beforehand’ for most parties ‘as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.’”  We have previously noted the dissent’s point concerning the difficulty of employer compliance where the state of the law is unclear here, here and here.

Reading the Signs

The ruling in Triple Play Sports Bar illustrates the NLRB’s further reach into social media policies and work rules.  An otherwise insignificant “like” can offer an employee protection under the Act, even in a non-union context, such as here.  Further, the decision deals a blow to employer efforts to utilize a ”savings clause” which plainly stated that the policy would have “no effect or force” in the face of countervailing federal law.  Employers are still searching for a savings clause that will find Board approval.  It is likely that if a savings clause ever is approved by the Board, it will have to be a simply worded one, not written only for lawyers but also to be easily understood by workers.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.

NLRB Divides Sharply on Employee Concerted Activity for “Mutual Aid or Protection”

Posted in NLRA, Protected activity, Section 7, Uncategorized, Workplace Investigations

In a complex, twenty-eight page opinion, a sharply divided NLRB has ruled that when an individual employee seeks assistance from fellow employees with respect to a violation under Title VII (or other workplace laws), the action is not only concerted but also presumptively for the purpose of mutual aid or protection, and thereby also covered by the National Labor Relations Act (“Act”).  Fresh & Easy Neighborhood Market, Inc., 360 NLRB No. 12 (2014).  This decision is important because it broadens the activities which are protected under the Act and potentially complicates employer investigations into allegations of sexual harassment or other conduct alleged to have violated a variety of federal, state and local workplace laws.

The heart of the legal dispute in the case is found in Section 7 of the Act, which sets out the protected rights of employees under the Act:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). [Emphasis added.]

For many years, the NLRB has held that under Section 7, there is a separate analysis for whether employee conduct was “concerted”, and if it was, whether it was ”for the purpose of . . . mutual aid or protection.”

The case here involved both questions.  In summary, it involved an individual employee who felt that she was being sexually harassed by remarks directed at her that had allegedly been written on a “white board” by a manager.  In order to preserve evidence of what was written on the white board before it could be erased, the offended employee copied it on paper and asked fellow employees who had seen the writing on the white board to sign her paper.  This was presumably to preserve and establish collaborative evidence of what had been written on the white board.  There was no evidence that the offended employee was seeking to initiate group action or solicit a common complaint from her fellow employees.

Following an investigation by the employer, and resulting actions with which the offended party was dissatisfied, she file an unfair labor practice charge and the General Counsel of the NLRB issued a complaint.  As a threshold matter, the Administrative Law Judge ruled that the offended employee had neither engaged in “concerted activity” by seeking the signatures of her fellow employees, nor sought to make common cause to initiate any group action, such that there was no purpose of “mutual aid or protection.” Based on these determinations, the ALJ dismissed the complaint.

The NLRB reversed the ALJ in a 3-2 decision.  The NLRB majority, joined by one dissenting member, held that the offended employee did engage in “concerted” conduct by requesting the signatures of the other employees.  The sharper split was over the NLRB’s further finding that the offended employee’s “concerted” conduct was for “mutual aid and protection”.  Essentially, the Board majority held that because she was seeking protection from sexual harassment under a statute (Title VII) applicable to the employer and its employees, her conduct was inherently for the purpose of “mutual aid or protection”, and no further proof of that was required.  To the extent that Holling Press, Inc., 343 NLRB 301 (2004) is to the contrary on the “mutual aid and protection” issue, the Board overruled it.

Both of the dissenting members vigorously disagreed with the majority’s conclusion that taking action to vindicate individual rights under a workplace statute inherently constitutes ”mutual aid and protection”. The complexity of the facts and the discussion back and forth between the majority and the dissenters are far more than can be fully described in this blog. But aside from the legal analysis, both dissenting members noted that if seeking to vindicate rights under another workplace statue was presumptively for “mutual aid or protection”, then in many cases an employer’s investigation into the allegations would be freighted with all sorts of “process limitations” imposed under the Act.

Member Miscimarra’s dissenting opinion listed these bottom line practical problems in some detail:

Unlawful Interrogation. The NLRA broadly prohibits the questioning of employees regarding “protected” activities. Under my colleagues’ holding, the employer, though obligated  to conduct an investigation and take remedial action under substantive laws like Title VII of the Civil Rights Act of 1964, is prohibited under the NLRA from questioning employees—including the person who presented the complaint—about the “protected” activity.

Unlawful Surveillance. The NLRA prohibits employer surveillance of “protected” activities, as well as comments or actions that create the impression of surveillance. Yet, employee complaints often involve disputes over what occurred or was communicated by or between employees. Under my colleagues’ holding, fact-gathering regarding such disputes will become difficult or impossible, because the NLRA renders unlawful most video or audio surveillance, email system searches, and similar investigative efforts regarding “protected” conduct.

The Right to “Refrain From” Protected Activity. If particular conduct is “protected,” Section 7 affirmatively protects the right of employees to “engage in” the conduct and to “refrain from” engaging in the conduct.  Thus, if an employee’s individual complaint involves “protected” conduct, the complaining employee or co-employee witnesses may invoke an NLRA-protected “right” to “refrain from” answering questions and providing relevant information, even if the relevant claim involves a sexual assault associated with a sex harassment complaint, for example, or a work-related injury or fatality implicated in an OSHA complaint. work-related injury or fatality implicated in an OSHA complaint.

Difficulty Knowing Which Individual Complaints Are “Protected.” Under my colleagues’ holding, Section 7 will cover all individual complaints that implicate statutory rights, but only if there is “concerted” activity by two or more employees. Yet, because the NLRA prohibits interrogation about “concerted” activity, employers cannot lawfully make inquiries sufficient to determine which individual complaints are covered by Section 7, and which are not.

Large Number of Individual Complaints Affected. Co-employees predictably will be the most frequent source of information about employment-related complaints, and their involvement may occur in numerous ways and at different times. Therefore, under my colleagues’ holding, nearly every investigation involving individual complaints will present difficult questions about whether or when the NLRA process-based restrictions are triggered.

Inability to Establish Standard Complaint-Handling Procedures. Conventional cases involving “protected” activity often give rise to difficult questions about whether the employer has knowledge of the activity. Yet, as noted above, the Act prohibits employers from making inquiries about “protected” activity, so employers cannot readily ascertain whether or when the NLRA applies to individual complaints, even if they exclusively invoke non-NLRA rights. Therefore, under my colleagues’ holding, employers will be unable to adopt a standard process for handling and investigating individual complaints unless they treat every individual complaint as being “protected” under the NLRA.

Slip op. at 21 (emphasis in original; footnotes omitted).

That said, there was some possible good news in the decision, as all the NLRB members agreed that two instructions given by the employer to the offended employee during the investigation of the incident did not violate the Act.  First, the employer had asked the offended employee why she had requested her fellow employees’ signatures on the paper on which she had copied the offended white board material. The employer also requested that the offended employee not take any more witness statements herself, pending completion of the employer’s investigation; however, the employer specifically stated that the offended employee could discuss the matter with her fellow employees and seek their assistance as witnesses.

In many instances, such directives or questions might be found to violate the Act as an interference with the employee’s right to seek the help of fellow employees. Here, however, the NLRB found that because the employer’s question and instruction was narrowly tailored to protect the integrity of the investigation, and was accompanied by the assurances, that there was no interference with protected rights that would violate the Act. Unfortunately, the majority noted several times that its holding on these issues was limited to “the facts of this case”.  This came as cold comfort to the dissenters, who pointed out that no employer could be sure that similar questions or directives under the facts of a future case would not be found unlawful, even as they try to carry out their responsibilities under a host of other federal, state and local workplace laws.


As Member Miscimarra pointed out in his dissent, over seventy years ago the Supreme Court stated:

[T]he Board has not been commissioned to effectuate the policies of the [Act] so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task. 

Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (emphasis added).

The NLRB plays an undoubtedly important role in federal workplace policy that has stood the test of time.  But, as the decision discussed in this blog illustrates, for some time now the NLRB has been reluctant, to the point of refusing, to balance its important role in enforcing rights under the Act with the rights and enforcement processes set out under other federal, state and local laws.  The refusal to strike this balance can unnecessarily complicate employer compliance efforts under those other federal, state and local workplace laws, and potentially diminishes the effectiveness of those other laws as well as the Act itself.

ALJ Declares NLRB’S Dues Checkoff Termination Decision a Dead Letter

Posted in Uncategorized

In WKYC-TV, Inc., 359 NLRB No. 30 (2012), the NLRB overruled 50 years of precedent under Bethlehem Steel, 136 NLRB 1500 (1962), and held that going forward, employers could not unilaterally end dues checkoff at the expiration or termination of a collective bargaining agreement.  There was no appeal in the WKYC case because the Board applied the new rule prospectively only, and not to WKYC-TV itself or to any other pending cases.

Now an ALJ has ruled that the WKYC decision was not controlling precedent because it had been decided by a Board panel that was invalidly appointed under the Supreme Court’s decision in NLRB v. Noel Canning et al., 134 S.Ct. 2550(2014).  In Lincoln Lutheran of Racine, No. 30-CA-111009 (August 11, 2014), the ALJ ruled that the employer’s unilateral termination of dues checkoff upon expiration of the collective bargaining agreement was lawful under Bethlehem Steel and that the Board had not had jurisdiction to issue the decision in WKYC and overrule Bethlehem Steel.

It is a foregone conclusion that the current Board will eventually endorse the rulings of the invalid Board which sat during 2012 and most of 2013.  And the vehicle for doing this and overturning Bethlehem Steel a second time appears to very likely be the Lincoln Lutheran case itself, assuming that the NLRB General Counsel files exceptions to the ALJ’s decision.

But even though the Board will very likely overrule Bethlehem Steel again, it is up in the air whether it would apply the new law prospectively only for a second time; or whether the Board would apply the new law to currently pending cases (including the Lincoln Lutheran case itself).  The test is whether or not a retroactive application of the new rule would  create a manifest injustice.  Query whether, because of its history of trying to overturn Bethlehem Steel, the Board might now apply a decision doing so retroactively and hold it was not manifestly unjust.

The Lincoln Lutheran decision may be a precursor of others by ALJs, applying similar reasoning to undermine precedent set by the invalidly appointed Board.  Eventually, the issues they raise will have to be sorted out by the Board itself, and possibly the courts.

NLRB Work Rule Decisions Continue to be a Mixed Bag

Posted in Handbook, NLRB, Social Media Policies, Uncategorized

As the NLRB continues to wade through the pool of issues arising from social media policies and other workplace rules, an Administrative Law Judge’s recent decision in Cellco Partnership d/b/a Verizon Wireless (July 25, 2014) illustrates the growing number of problems employers face in developing corporate policies and the variability of NLRB decisions. In this case, Cellco Partnership and Airtouch Cellular had mixed success in defending their work rules against alleged 8(a)(1) violations.  Specifically, the ALJ ruled in the following ways with respect to corporate policies that forbade employees from:

  • Engaging in solicitation during work time, distributing nonbusiness literature in work areas at any time and using company resources (such as emails, computers, telephones and fax machines) for solicitation or distribution purposes
    • The ALJ upheld this rule, finding that employees have no statutory right to use an employer’s equipment for personal matters.  Citing Register-Guard  (Dec. 16,  2007), ALJ Cates opined that email systems constitute employer property, and are thus subject to restrictions under employers’ “right to regulate and restrict the use of company property.”  Based on the ruling in Register-Guard, ALJ Cates declined to consider the applicability of the Republic Aviation (Jan. 10, 1945) framework, which would have balanced the employee’s Section 7 rights with the employers’ disciplinary interests, concluding that it was for the Board to determine whether the precedent should be altered.  It should be noted that the Board is currently considering the issue of whether employees should have a right to use an employer’s email to engage in protected activity in Purple Communications, Inc. (Cases 21-CA-095151, 21-RC-091531 and 21-RC-091584).
  • Accessing, obtaining or disclosing another employee’s personal information unless acting for approved business purposes
    • The ALJ found this rule to be unlawfully overbroad.  Employees could reasonably conclude the rule to restrict their Section 7 rights in discussing terms and conditions of employment with co-workers and nonemployees, such as union representatives.  The ALJ also noted that a number of previous Board decisions found that nondisclosure policies prohibiting the sharing of employees’ addresses, telephone numbers and email addresses violate Section 8(a)(1) of the Act.
  • Recording, photographing or videotaping another employee without that employee’s knowledge and approval
    • The ALJ found this rule to be valid, finding that the use of recording devices is not a protected activity under Section 7.  ALJ Cates held that there was no basis to believe that the rule was intended to restrict the exercise of Section 7 activities, nor could it be interpreted by a reasonable employee to do so.  The ALJ noted that the rule does not outright ban the use of recording devices, but rather requires employee consent, which a union could easily obtain by requiring members to sign a waiver.
  • Releasing nonpublic company financial information to the public, third parties, or internet forums
    • The ALJ upheld this rule, finding that a reasonable employee would likely understand it as a subset of a rule on “Safeguarding Company Information.”  It is clear that this rule deals with  protecting information that could lead to the buying and selling of securities, and not information pertaining to terms and conditions of employment.
  • Disclosing nonpublic information to employees and former employees without authorization
    • The ALJ upheld the rule, finding that, as formerly discussed, nonpublic information was clarified by a previous rule to refer to inside information that could affect a person’s decision  to buy or sell securities or intellectual property rights.  Since it does not pertain to employees’ discussion wages or terms and conditions of employment, it does not unlawfully restrict Section 7 rights.
  • Using company systems (such as email and internet) to engage in activities that are unlawful, violate company policy, or cause liability or embarrassment to the company
    • The ALJ ruled that because the policy restricts the use of company systems without discriminating against Section 7 rights, it is lawful under Register-Guard.  Additionally, the rule is narrowly drawn and includes clarifying examples as to what conduct would cause company embarrassment, such as pornography, gambling, obscene or offensive content, and thus would not be read by a reasonable employee to restrict Section 7 activity.
  • Using the company brand and logo outside approved corporate identity specifications
    • The ALJ found this rule unlawful, but noted the conflicting holdings on the issue.  The ALJ cited Pepsi-Cola Bottling Co. (Feb. 28, 1991), which held an employer’s prohibition of wearing company uniforms while engaging in union activity was unlawful without a legitimate business purpose—especially since it was promulgated in response to union activity.  On the other hand, in Flamingo Hilton-Laughlin (Nov. 30, 1999), the Board distinguished the precedent in Pepsi-Cola and dismissed allegations that a policy prohibiting employees from wearing work uniforms outside company premises was unlawful, since there was no evidence of discriminatory intent.  The ALJ noted that although there was no indication of anti-union animus in this case, the rule’s overbroad nature unlawfully restricts employees’ Section 7 rights. Under this policy, employees would be unable to display a company logo as part of their communications, such as on leaflets or picket signs dealing with an employment related dispute.

The ALJ’s decision demonstrates the importance of considering individual work rules within the context that they are presented.  As in other cases, the employer’s inclusion of specific examples to clarify policies may be used to support the argument that employees would not interpret work rules in a manner that infringes on their Section 7 rights.  Additionally, the importance of “considering the employee Code of Conduct as a whole” was integral in the ALJ’s upholding of multiple policies that applied to lawful conduct clarified in previous rules.

The ALJ’s decision also highlights the issue of competing precedents, particularly relating to rules that govern the usage of company brands and logos outside of the workplace.  As discussed in the opinion, the precedents set by Pepsi-Cola and Flamingo Hilton-Laughlin have led to divergent decisions in subsequent cases (see, e.g., Shadyside Hospital (April 19, 2013) (holding that under Pepsi-Cola, a rule banning usage of the company logo in social media posts without written permission is unlawful because restricts Section 7 rights) and General Motors, LLC (May 30, 2012) (finding a similar bar on usage of the company logo lawful under Flamingo Hilton-Laughlin, given an absence of unlawful promulgation or discriminatory application)).  

Similarly, work rules regarding the prohibition of recording conversations have also been subject to opposing rulings (see, e.g., Whole Foods Market (Oct. 30, 2013) (upholding rule forbidding recording of conversations with a recording device) and Professional Electrical Contractors of Connecticut (June 4, 2014) (striking down rule prohibiting recording)). While the growing number of decisions on work rule cases may help to remove some of the ambiguities in this area of the law, the seeming inconsistencies in case results and guidance often leave questions of legality that can prove as perplexing for ALJs as they are for employers.


Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, and Cornell ILR Intern­­ Laura Bakst for their assistance in preparing this post.